Decision  Phuc Tran v. Constitution Seafoods, Inc.

Date:	06/26/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 011325-98
Location:	Boston
Referenced Sources:	John Saccone v. Dept. of Public Health Julian Melendez v. City of Lawrence Christos Lagos v. Mary A. Jennings, Inc. Frank Cordi v. American Saw & Manufacturing Co. Jose Valdes v. Tewksbury State Hospital Candice Lockheart v. Wakefield Engineering

• Employee: Phuc Tran
• Employer: Constitution Seafoods, Inc.
• Insurer: Legion Insurance Company

COSTIGAN, J. The employee appeals from a decision in which the administrative judge found him not credible and denied his claim for further weekly incapacity benefits. The employee had claimed temporary total incapacity benefits under G. L. c. 152, § 34, from December 4, 1998 to January 21, 2002, and permanent and total incapacity benefits under § 34A thereafter.¹

¹ The insurer had resisted the employee’s original claim. After a § 10A conference, the judge ordered the insurer to pay § 34 benefits from January 19, 1998, the date of the employee’s alleged injury, (Dec. 6), to December 4, 1998, on or about which date he suffered a stroke. (Dec. 7.) Even the employee’s medical expert acknowledged that the stroke was unrelated to the industrial injury. (Dec. 14.) The insurer appealed from the conference order but the employee did not. The insurer subsequently withdrew its appeal, (Dec. 2), thereby accepting liability and conceding temporary total incapacity to December 4, 1998. "Failure to file a timely appeal [of a conference order] or withdrawal of a timely appeal shall be deemed to be acceptance of the administrative judge’s order and findings. . . ." G. L. c. 152, § 10A(3). The employee petitioned the commissioner of the department for permission to file a late appeal of the conference order, see id., but his petition was denied. (Dec. 2.) He then filed the instant claim, which was denied by the judge at conference, and again in the hearing decision we review.